159 So. 818 | Ala. | 1935
The trial was had on counts 1 and 2 of the complaint as amended. Demurrers were overruled, the pleading was in short by consent, and the verdict was for plaintiff. There was motion for a new trial and the judgment was reduced and the motion overruled. The rulings on demurrer are assigned as error and duly urged for consideration.
It is established that negligence may be averred in a complaint in general terms, and when the allegation is of the acts constituting negligence relied upon, the pleading is demurrable, unless such acts, so averred, in themselves constitute actionable negligence as a matter of law. B'ham Ry., L. P. Co. v. Barrett,
There is no absolute duty upon a municipality to provide guard rails or barriers at or near an open ditch, sewer, or drain (volume 7, McQuillin on Municipal Corporations [2d Ed.] p. 204, § 2984), unless the place is dangerous and alongside the street, which without such protection will render that highway unsafe to travelers in the usual modes. Chance v. City of St. Joseph,
The decisions of the Massachusetts court illustrate the question presented by the demurrer to the complaint. In Damon v. City of Boston,
The duty imposed by sections 2984, 2996, and 2998 in volume 7, McQuillin on Municipal Corporations (2d Ed.) pp. 201, 204, 223, 229, illustrates this important phase of municipal law. It is written:
"Given a condition in or close to a street, such as to be dangerous to travelers thereon, the municipality becomes burdened with a certain duty, provided, if notice is necessary, it has notice, or ought to have had notice, thereof; and this is so even though the cause of the danger is lawful or the dangerous condition was wholly the act of a third person. This duty is to warn travelers of the danger so that they may turn back, pass around, or proceed with eyes open and watching for danger. In addition to the duty to repair, the duty of a municipality to use ordinary care to keep its streets in condition for use includes the duty where there are dangerous obstructions, declivities, or excavations in or near the street, whether created by the municipality itself or by third persons, where it has notice thereof or notice is unnecessary, to take proper precautions to guard against accidents by the use of railings, barriers, lights or the like, especially at night. (Albany v. Black,
"Unless the place is dangerous as mentioned the erection of barriers to guard a street *102 or sidewalk is not required. The duty to place barriers on a street, although travel thereon be in a degree unsafe, or even dangerous, it has been said, is not absolute. The law does not require it unless the danger complained of is unusual."
Adverting to the decisions from this jurisdiction, it is observed by Mr. Justice Sayre in City of Montgomery v. Wyche,
"The court charged the jury on plaintiff's request in this language: 'The court instructs the jury that if they believe from all the evidence that the open sewer or ditch into which plaintiff fell was a dangerous place, then it was defendant's duty to erect a rail guard or barrier along said sewer or ditch between said ditch and the traveled way of the street, and the defendant's failure to so erect a guard or barrier was negligence on the city's part.' This charge assumed the existence of a number of facts, as that plaintiff had fallen into an open ditch in a street of the city, and that the municipal authorities, having reasonable notice thereof, had failed to provide a barrier for the protection of travelers along the street. * * *
"The charge did, however, leave it to the jury to determine whether the ditch constituted a dangerous place. On this last-named fact, hypothesized as found by the jury, and the other facts which, on the evidence, the court might without error assume to exist, the charge correctly stated the duty of the municipal authorities in the premises. Mayor, etc., of City of Birmingham v. Lewis,
As to our decisions stating the requirements of good pleading in a case like this, in Johnson v. Birmingham Railway, L. P. Co.,
The rules of our cases in this connection are stated in Alabama Baptist Hospital Board v. Carter,
The negligence charged is that defendant allowed "the open ditch, sewer or drain, occupying a part of 32nd Avenue, to be and remain without barriers, guard rails or other devices along the edge or near said open ditch, sewer or drain, for such an unreasonable length of time as to raise presumption of knowledge"; and that it had theretofore been stated, in the preceding section, that he "suffered damage as a proximate consequence of defendant's negligence, carelessness or failure to provide proper guard rails or barriers at and near said open ditch, sewer or drain." It will be observed that the rest of this pleading is, as indicated in the recent decision of Alabama Baptist Hospital Board v. Carter,
It follows that the second, fourth, fifth, and eighth grounds of demurrer raised the question of whether the specific facts averred constitute negligence or show any breach of duty on the part of the defendant, city of Birmingham?
For the purpose of another trial, we may observe that there was error in allowing the question to and answer by Dr. Bobo, as follows:
"Q. 'Is there a qualified staff of medical doctors at the Hillman Hospital?'
"Defendant by counsel objected to the question on the ground that it was incompetent, irrelevant, immaterial and illegal.
"The Court overruled the objection.
"To which ruling of the Court the defendant by counsel then and there duly and legally reserved an exception.
"The witness answered the question as follows:
"A. 'There is, but the staff doesn't usually take care of the injuries of this type. It is left usually to the nurses and internes.' "
This testimony was improperly admitted in an action against the city by the injured party for personal injury. Atlantic Pacific Stages, Inc., v. Yandle,
The act of 1915 (General Acts 1915, p. 298, § 12) provides for the filing of a verified claim for an injury and damage, as that declared upon in the instant case, stating that: "No suit shall be brought or maintained nor shall any recovery be had against any such city on a claim for personal injury, or for neglect or wrongful injury to personal property, unless within ninety days from the receipt of such injury, a sworn statement be filed with the city clerk, or the city officer corresponding thereto, by the party injured, stating substantially the manner in which the injury was received and the day and time and place where the accident occurred, and the damage claimed, and stating with substantial accuracy the nature and character of the injury received and the street and house number where the party injured resides." City of Birmingham v. Scott,
The refusal of instruction precluding the jury from returning a verdict on the evidence in substantial conflict or material variance with the statement of claim filed with the municipality, as to the manner in which plaintiff sustained his injuries, for which suit is brought, is error to reverse. King v. City of Birmingham et al.,
There was error in refusing defendant's charge which we denominate A. Under the pertinent phase of the evidence there was shown a material variance as hypothesized, different from that indicated in the notice given the city.
The judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.
